Legislature(2005 - 2006)BUTROVICH 205
05/01/2005 04:00 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB125 | |
| SB127 | |
| SB186 | |
| SB187 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 125 | TELECONFERENCED | |
| += | SB 127 | TELECONFERENCED | |
| += | SB 186 | TELECONFERENCED | |
| += | SB 187 | TELECONFERENCED | |
| += | HB 33 | TELECONFERENCED | |
| += | HB 81 | TELECONFERENCED | |
| += | HB 149 | TELECONFERENCED | |
| += | HB 183 | TELECONFERENCED | |
| += | HB 184 | TELECONFERENCED | |
| += | HB 210 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 186-EXECUTIVE BRANCH ETHICS
For the purpose of research, it is important to review minutes
st
and recordings of SB 127 one May 1, 2005 where the two bills
were distinctly compared.
CHAIR RALPH SEEKINS announced his intent to merge SB 127 into SB
186. He asked Ms. Barbara Richey whether she had concerns with
SB 186.
MS. BARBARA RICHEY, chief assistant attorney general, Department
of Law (DOL), said SB 186 does a good job of indicating what
constitutes a significant personal or financial interest in a
matter. The changes in confidentiality work well.
CHAIR SEEKINS moved Version \I as the working document. Hearing
no objections, the motion carried.
7:13:29 PM
MS. RICHEY continued SB 186 does not dramatically change current
law on confidentiality of executive branch ethics matters. It
sets up a mechanism for the steps in the event of an allegation
of ethics violation in regards to the governor, the lieutenant
governor, and the attorney general. She said it was an
improvement to the current ethics law.
7:15:02 PM
CHAIR SEEKINS asked Ms. Richey how long she has worked with the
current law.
MS. RICHEY informed she has headed up her section for two years
and has worked in ethics matters prior to that.
CHAIR SEEKINS asked Ms. Richey to explain her concern with the
effective date.
MS. RICHEY said she would like to have an opportunity to do some
training on the changes because they are significant. She would
like people to have a chance to review their financial holdings.
There may also need to be some regulatory changes as well.
7:16:37 PM
MS. RICHEY added the law from 1986 until 1998 identified
violation of the confidentiality provisions of the Ethics Act as
a class A misdemeanor. Legislators in 1998 felt it was too harsh
a penalty and so they took it out.
CHAIR SEEKINS advised he was going to advance a conceptual
amendment. On Page 1, line 8; reduce the penalty for disclosure
of ethics violation to a $5,000 fine. He would leave it to the
drafters to determine whether that would be a new section of the
bill. He asked Ms. Richey to read the statute regarding the
penalty that the personnel board may impose on current or former
public officers.
7:18:41 PM
MS. RICHEY said the Ethics Act itself is not a criminal statute.
The civil penalty that may be imposed is not to exceed $5,000.
CHAIR SEEKINS stated that would include confidentiality
sections.
MS. RICHEY looked at Oregon law and said they have a civil
penalty for violation of confidentiality provisions. It reads,
"any person aggrieved as a result of violation of this paragraph
by a member of the ethics commission or it's staff may file a
petition in court in the judicial district where the petitioner
resides in order to enforce a civil penalty provided in this
section."
7:20:53 PM
CHAIR SEEKINS speculated the intent was the aggrieved person
could now bring into the process a person who was not a member
of the personnel board or the attorney general's office.
SENATOR FRENCH said his analysis is that in Oregon a person
could sue a member of our equivalent of the personnel board if
one of those members leaks to the press.
MS. RICHEY agreed.
7:22:55 PM
SENATOR THERRIAULT asked the process previous to 1998.
MS. RICHEY advised the Ethics Act was enacted in 1986 and the
misdemeanor provision was in the bill since the beginning.
7:24:06 PM
CHAIR SEEKINS reiterated his intent was to allow the appropriate
public entity to impose up to $5,000 penalty.
7:25:58 PM
SENATOR FRENCH assumed the enforcement mechanism would lie in
the attorney general's office.
CHAIR SEEKINS said yes.
MS. RICHEY agreed. Under current law the personnel board could
impose a penalty for violation of the chapter and the chapter is
the entire Ethics Act. It may be possible to give the personnel
board jurisdiction if the complainant is not a public officer.
CHAIR SEEKINS conceptually proposed to ask the drafters to add a
new section to AS 39.52.440 that allows the board the authority
to impose a fine on any person who violates the confidentiality
requirements of the statute. So a person could be fined $5,000
on other violations and also $5,000 fine for violating the
confidentiality portions.
7:29:30 PM
SENATOR FRENCH disagreed. The personnel board would not have
jurisdiction over a citizen who files a complaint.
CHAIR SEEKINS said in the case of someone who is not a public
officer then authority would be given to the DOL.
SENATOR FRENCH disagreed with the fundamental approach of the
amendment. There has only been one flagrant violation of
confidentiality in recent history.
7:31:12 PM
MS. RICHEY said currently when a complaint is filed the
complainant and the subject of the complaint are always advised
the complaint is confidential under law.
CHAIR SEEKINS stated a complaint must be in writing and under
oath.
MS. RICHEY agreed.
CHAIR SEEKINS asked whether there was an actual form that is
filed.
MS. RICHEY said it was under oath.
CHAIR SEEKINS asked whether there was anything in statute that
bars the complainant from disclosing they are filing an ethics
report before they actually file the complaint.
MS. RICHEY said no. What is confidential right now is the
complaint and the investigation.
SENATOR FRENCH noted current law says the attorney general and
all persons contacted during the course of an investigation
shall maintain confidentiality regarding the existence of the
investigation. He said the law is clear the investigations are
confidential.
7:35:11 PM
CHAIR SEEKINS reiterated his earlier conceptual amendment.
Hearing no objections, Amendment 1 was adopted.
SENATOR HUGGINS asked Senator French his reservations in the
blind trust area.
SENATOR FRENCH said the concern is when a person puts an asset
into a blind trust and then later makes a decision that affects
the stock in the account. As it is now, a person has too much
access to their investments and could make decisions based on
those assets.
7:38:22 PM
CHAIR SEEKINS said he would be more nervous putting money into
an account where he had no control. At least a blind trust has
more fiduciary responsibilities on the part of the trustee.
7:43:59 PM
CHAIR SEEKINS asked for further amendments.
SENATOR FRENCH offered a conceptual amendment having to do with
the length of time the assets are in a blind trust and a set of
restrictions an officer sends along with his/her investments.
The assets would have to be in a blind trust for six months or
greater and the management control would be something similar to
what Attorney General Marquez did to put his assets out of his
control.
CHAIR SEEKINS asked if he wanted to apply that standard to all
twenty thousand state employees.
SENATOR FRENCH clarified he was trying to avoid a public officer
making decisions based on their investments and not on the
public good.
CHAIR SEEKINS said he would consider Amendment 3, which would
read, "...after consulting with the public officers designated
ethics supervisor the financial interest in a matter is held in
a blind trust where the public officer does not have management
control over the financial interest."
7:48:03 PM
MS. RICHEY advised the committee they were considering proposed
amendments to AS 39.52.110 and that is a section that provides
overall guidance to the code of ethics. She assured the
committee that section is followed properly.
Chair Seekins announced a brief recess at 7:50:48 PM.
Chair Seekins reconvened the meeting at 7:57:12 PM.
CHAIR SEEKINS advised he wants to work with Senator French to
craft a good bill. His experience with broker managers is a
person could place restrictions on what the broker can buy.
7:58:18 PM
SENATOR FRENCH said it might be easier to do by developing a set
of forms for each state department.
CHAIR SEEKINS agreed that could be done.
7:59:46 PM
MS. RICHEY noted Section 8, sub-paragraph (A), and asked the
reason for the changes.
CHAIR SEEKINS answered they directly relate to financial
investments.
MS. RICHEY argued that is true for sub-paragraph (B) but not
(A). She recommended the committee leave "personal or" in sub-
paragraph (A). There can be a situation where people are on a
board and if they resign from that board it is a personal type
interest.
8:02:06 PM
SENATOR FRENCH withdrew Amendment 2.
CHAIR SEEKINS proposed Amendment 3.
Insert "personal, or" on Page 4, beginning of line 3.
SENATOR THERRIAULT asked Chair Seekins to restate his proposed
amendment.
MS. RICHEY commented it would allow a designated ethics
supervisor to require someone to remove interests.
Amendment 3 was adopted unanimously.
8:04:04 PM
CHAIR SEEKINS commented Sections 9-13 all deal with the process
for the attorney general, the lieutenant governor and the
governor.
SENATOR FRENCH expressed concern regarding Section 10 and review
of the report of the independent counsel.
CHAIR SEEKINS interrupted to clarify Section 10 relates to the
allegation of complaint. Section 10 lays out the process prior
and is used to determine if a complaint should be filed.
SENATOR FRENCH speculated a series of newspaper articles could
make allegations of ethics violations against the governor,
which comes to the attention of the attorney general. The
attorney general would ask the personnel board to appoint an
independent counsel who would conduct an investigation. A report
would be submitted to the attorney general who would review it
to decide whether the findings indicate a violation. That
stated, he asked why insert the judgment of a political ally of
the subject instead of simply handing the completed report over
to the personnel board.
8:06:56 PM
CHAIR SEEKINS answered he would have as much confidence in the
attorney general as he would the politically appointed board.
SENATOR HUGGINS aired the fail safe mechanism is nothing
precludes a person from filing a complaint concerning the same
matter.
CHAIR SEEKINS asserted trust must be placed at the attorney
general level.
8:09:15 PM
SENATOR GUESS commented since the investigation and the
conclusion is confidential there would appear no public response
or no comment to Senator French's speculated newspaper scenario.
CHAIR SEEKINS said more than likely if an independent
investigator's report came back to show no violation, someone
would make that fact public. In order to stop a public inquiry
somebody would have to disclose the result of the investigation.
If there was found to be probable cause the matter then becomes
public because the attorney general would have to file the
complaint.
SENATOR GUESS asked at what time does a report of an allegation
become an allegation versus just someone's opinion.
8:12:26 PM
SENATOR FRENCH answered currently a person has to file a
complaint and swear to it. SB 186 doesn't detail how to get the
mechanism going. He suggested adding a probable cause standard
in the bill for a legal reference.
8:14:43 PM
CHAIR SEEKINS asked Ms. Richey her interpretation of the trigger
point for the investigation.
MS. RICHEY assessed the report part is clear and easy, where a
person reports to a supervisor under oath and in writing of a
potential violation. She said she would have to think more about
allegations and newspaper opinions because it seems to leave it
to the discretion of the attorney general or the governor who is
each other's designated ethics supervisors under the current
law. For the benefit of their own piece of mind and the people
of Alaska, they should go to the personnel board and get an
independent counsel appointed.
8:17:16 PM
CHAIR SEEKINS said his intent was to allow them that discretion.
MS. RICHEY said it happened (in former Attorney General Renkes
case) and the governor immediately investigated it.
SENATOR GUESS referred to Page 6, line 15 and noted there are
two campaign periods, one when filing for office and another
when filing APOC (Alaska Public Office Commission) papers. She
asked which campaign period was referenced.
CHAIR SEEKINS responded it would be when a person actually files
for office.
MS. RICHEY advised "campaign period" is defined in the Ethics
Act.
8:20:00 PM
SENATOR FRENCH detailed currently an interested party could
petition the superior court and the superior court could make
the matter public. He asked the reason for taking that power
away from the superior court in Section 13.
CHAIR SEEKINS said the intent is not to strike the authority of
the superior court; it's just not included in the section.
SENATOR THERRIAULT commented the drafter dropped it out but it
is still included somewhere else.
MS. RICHEY explained the superior court process. She added it
has never been used.
The entire section AS 39.52.335 was added in the 1998
amendments to the law. The concept was to have more
oversight of what the attorney general is doing
because the attorney general has a lot of power under
the Ethics Act to dismiss complaints or proceed with
complaints. This is the one that triggered the
quarterly reports and the reports to the personnel
board that we do every month on what's going on with
complaints etc. When the bill shows deleting "the
superior court makes the matter public under (h) of
this section", before the superior court could ever
get involved, you'd have to have a situation where
number one, it's a dismissal that is confidential and
number two, the personnel board, in their review,
decides for whatever reasons that the publication is
in the public interest. Then they put in their report
a recommendation that the matter be made public. That
was in AS 39.52.335(f), which is proposed to be
deleted in Section 14 of SB 186.
If all those things happened, so that the disposition
was not made public and the personnel board report
contained recommendation that it be made public, that
is when an interested person could go to superior
court. They can't just go to superior court because
they feel like it. The personnel board first has to
decide that this matter should be made public. Then
they go to court and the court could order that all of
it or parts of it be made public if they determine
that the several things that have to be established
were. One of those things is "the release of
information will not infringe on protected rights",
"the matter concerns public interest", and "the
resolution was clearly contrary to the requirements of
this chapter", those kinds of things.
As a matter of practice, when we resolve a complaint
through a stipulation, we require that the stipulation
be made public so that Alaskans know the law is being
enforced and it gives guidance to state employees and
to designated ethics supervisors as to what sort of
conduct will result in an ethics complaint and
enforcement of the law. We try to make all our
resolutions of these public.
8:25:42 PM
MS. RICHEY summarized the only change that SB 186 would make to
AS 39.52.335 is to end the process when there is a dismissal
that is not public then that would end it. The personnel board
could not recommend that it be made public and the trigger for
the superior court to make something public would be removed.
SENATOR FRENCH asked Ms. Richey how the personnel board could
come to a wrong conclusion about the need to publish a
dismissal.
MS. RICHEY reiterated there is no history of anybody using AS
39.52.335.
8:27:22 PM
MS. RICHEY stated confidence in the handling of the cases. Ones
that have substance are made public.
8:29:02 PM
SENATOR FRENCH relayed his belief the superior court is a safety
valve for if a cover up is happening. He moved Amendment 4. Page
6, line 25 reinsert "superior court makes the matter public
under (h) of this section."
CHAIR SEEKINS objected. He advised Senator French his motion
would also have to repeal the repealer.
SENATOR FRENCH added to repeal the repealer and any further
adjustments for statute conformity. The idea behind Amendment 4
is to maintain the safety valve of the superior court.
Roll call proved Amendment 4 failed with Senators Huggins,
Therriault and Chair Seekins dissenting.
SENATOR FRENCH noted a section deleted on Pages 6 and 7. He
asked Ms. Richey whether that section applied to personnel board
issues.
MS. RICHEY said it all related to AS 39.52.355 and disposition
of complaints by the attorney general's office.
8:33:37 PM
SENATOR FRENCH stated for the record he was positive that a
citizen of the State of Alaska could not be bound to
confidentiality as Section 15 states.
CHAIR SEEKINS responded what triggers the violation is somewhat
retrospective in that a person has filed the complaint. What he
is trying to avoid is someone using ethics violation to harm
someone else. SB 186 is an attempt to give somebody the
opportunity for a deliberative body to review a complaint before
that person is tried by the press.
8:38:00 PM
SENATOR FRENCH said he believed the press wasn't generally that
interested. The bill is covering a range of violations that are
already covered by liable and slander laws. He moved Amendment
5. Page 7, line 18 strike the material "complainant" and remove
the rest of the material on lines 20-27 that is bold and
underlined.
SENATOR THERRIAULT objected.
8:40:54 PM
Roll call proved Amendment 5 failed with Senators Huggins,
Therriault and Chair Seekins dissenting.
MS. RICHEY commented lines 24-27 are about public records cases.
SENATOR FRENCH asked the reason for the word changes in Section
19 sub-paragraph (B) (conjugal vs. sexual).
CHAIR SEEKINS stated he was trying to reflect a marriage
relationship better.
MS. RICHEY agreed. She said the words "conjugal" and "cohabit"
indicate living in a marital relationship.
8:42:42 PM
SENATOR FRENCH proposed Amendment 6. Add a definition for
"official action", which would read, "Official action means
performance of any duties in the course and scope of a public
official's employment including review, advice, participation,
assistance, or other kind of involvement regarding a matter such
as a recommendation, decision, approval, disapproval, vote, or
other similar action including inaction by a public officer."
CHAIR SEEKINS objected.
8:44:23 PM
Roll call proved Amendment 6 failed with Senators Huggins,
Therriault, and Chair Seekins dissenting.
8:46:12 PM
MR. MERLE THOMPSON testified in opposition of SB 186. He stated
public trust is the reason ethics laws are written. SB 186 seems
more concerned with groundless complaints, ruined reputations
and financial restriction. It suggests need for more secrecy and
punishes the complainant more so than the actual violator.
People in public office are supposed to be held to higher
standards.
8:48:35 PM
MR. THOMPSON continued the class A misdemeanor was applied to
members of the committee, not to the general public. He claimed
SB 186 was taking away from the system of government and in
violation of the First Amendment of the U.S. Constitution.
8:52:47 PM
CHAIR SEEKINS alleged there was nothing in SB 186 that would
fine a whistleblower.
MR. THOMPSON asked whether he would be penalized in the case of
if he intended to file a complaint against the attorney general
and advised the press of his intentions.
CHAIR SEEKINS said it depends on whether he filed that
complaint.
8:55:24 PM
CHAIR SEEKINS closed public testimony.
SENATOR FRENCH suggested there would have been more citizens who
would have testified had the hearing been better advertised. He
said the public is unaware that the Senate Judiciary Standing
Committee is hearing SB 186 today.
8:57:01 PM
CHAIR SEEKINS stated SB 186 has been on the daily schedule since
last Friday. People will have opportunity to testify at the
House hearings.
SENATOR THERRIAULT moved CSSB 186(JUD) from committee with
individual recommendations and attached fiscal note(s).
SENATOR FRENCH objected.
Roll call proved Senator French's objection failed. CSSB
186(JUD) passed out of committee with Senator French dissenting.
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